SAMWU obo Nesengani v Mogale City Local Municipality and Others (J1784/14) [2014] ZALCJHB 296 (5 August 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

NOT REPORTABLE

OF INTEREST TO OTHER JUDGES

CASE NO: J 1784/14

In the matter between:

SAMWU obo NESENGANI Applicant And MOGALE CITY LOCAL MUNICIPALITY First Respondent SALGBC Second Respondent MATLALE N.O. Third Respondent

Heard: 22 July 2014

Delivered: 5 August 2014

SUMMARY; Urgent application to stay disciplinary hearing pending review of Bargaining Council ruling.

STEENKAMP J

Introduction

[1] The applicant, Mr Nesengani (represented by his trade union, SAMWU), seeks an order interdicting the first respondent, Mogale City Local Municipality, from proceeding with a disciplinary hearing before the final determination of a review application. In that application he seeks to review and set aside a ruling of the South African Local Government Bargaining Council (the second respondent) granting condonation to the Municipality in terms of clause 6.3 of the SALGBC Disciplinary Procedure and Code collective agreement to proceed with a hearing after the prescribed time periods had lapsed.

[2] This court will only intervene in incomplete disciplinary hearings in exceptional circumstances.[1] Is this such a case?

Background facts

[3] The Municipality is busy with a disciplinary hearing against the employee, Mr Nesengani. It is common cause that it started more than three months after the municipality became aware of his alleged misconduct. That is a contravention of clause 6.3 of the collective agreement, which states:

“The employer shall proceed forthwith or as soon as reasonably possible with the disciplinary hearing but in any event not later than three months from the date upon which the employer became aware of the alleged misconduct. Should the employer fail to proceed within the period stipulated above, and still wish to pursue the matter, it shall apply for condonation to the relevant division of the SALGBC.”

[4] The Municipality did belatedly apply for condonation. The Bargaining Council commissioner (the third respondent) granted it on 4 July 2014. (The applicant received it on 15 July). The applicant applied to review that ruling on 16 July. On the same day, the Municipality informed him that the hearing would continue on 22 July. It refused to postpone the hearing pending the review application. The applicant then brought this urgent interdict application. It was set down for 22 July. On that day, the parties agreed to postpone the disciplinary hearing pending the ruling in this application. This application was heard on 25 July.

The review application and this application

[5] In the review application, the applicant submits that the Commissioner committed misconduct in relation to her duties and that she was dishonest. The ruling on condonation was made without hearing either of the parties. The Commissioner stated in her ruling that the employee and the union failed to appear at the hearing; in fact, she was more than an hour late and the employee and his union representative had already left when she arrived.

[6] It is common cause that the condonation application was set down for con-arb at 10:30 on 23 June 2014. The employee and his union representatives arrived on time. So did the municipality’s representative. The Commissioner was more than an hour late.

[7] The Commissioner nevertheless made a ruling on condonation, apparently on 4 July 2014. She did so without hearing the parties, despite the fact that the matter had been set down for an oral hearing at 10:30 on 23 June. The municipality alleges that the union team left the arbitration venue at about 11:15 and that the Commissioner arrived and commenced with the hearing at 11:30.

[8] A regional secretary of the Bargaining Council, Ms Cordelia Manda, on the other hand, explained under oath that the union representative telephoned her at approximately 11:15 to inform her that the parties were waiting for the Commissioner at the designated venue. She told the municipality’s attorney, Mr Phungo, on 22 July – before the municipality filed its answering affidavit – that the applicant’s version is correct as to what happened on 23 June.

[9] I need not decide the factual dispute at this stage. I need only decide whether the applicant’s prospects of success in the review application are so strong that it would be in the interests of justice that the disciplinary hearing not proceed pending that application. But on the affidavits before me, the version of the municipality as to what happened on 23 June is “fanciful and wholly untenable”[2] and I accept the version of the applicant.

[10] Should the condonation ruling be overturned on review, the disciplinary hearing will be vitiated. In the circumstances, I’m satisfied that this is one of those rare exceptional cases where the hearing should be interdicted pending finalisation of the review application.

[11] This is not a case such as the one cited by Mr Sibuyi[3] where the applicant misinterpreted the provisions of clause 6.3 of the collective agreement. In this case, it is common cause that the municipality did not comply with clause 6.3. What is to be determined, is whether the Commissioner’s ruling to grant

condonation nevertheless, should be reviewed and set aside. The applicant has an alternative remedy, namely to continue with the

disciplinary hearing and then to challenge the condonation ruling afterwards. But, as I’ve said, the absence of condonation in terms of clause 6.3 would vitiate the entire disciplinary hearing. It would lead to unnecessary costs and delays to carry on with a disciplinary hearing in circumstances where it is not clear whether the municipality was entitled to condonation. That can only be decided by this court on review, or by another Commissioner, should the condonation ruling be reviewed and remitted to the bargaining Council.

[12] In these circumstances, I’m not satisfied that justice can be obtained by other means. I’m also satisfied that the matter is urgent, given that the disciplinary hearing is due to commence. Also, the applicant acted immediately he received the condonation ruling.

[13] With regard to costs, I take into account that there is still a relationship between the parties, however fraught it may be; and that the hearing is incomplete. I do not consider a cost order of the states to be appropriate.

Order

[14] I therefore make the following order:

14.1 This matter is enrolled as an urgent application as contemplated in rule 8.

14.2 The first respondent (the municipality) is interdicted from proceeding with a disciplinary hearing against the applicant, Mr Nesengani, before the final determination of the review application under case number JR 1464.14.

_______________________

Anton Steenkamp

Judge of the Labour Court of South Africa

APPEARANCES APPLICANT: J G van der Riet SC Instructed by K D Maimane Inc. FIRST RESPONDENT: H W Sibuyi Instructed by Phungo Inc.

[1] Booysen v Minister of Safety & Security (2011) 32 ILJ 112 (LAC); Jiba v Minister: Department of Justice and Constitutional Development (2010) 31 ILJ 112 (LC).

[2] Buffalo Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd & ano 2011 (1) SA 8 (SCA) paras 19-21.

[3] SAMWU obo Nkuna v Enhlazeni District Municipality & ors (J 272/14, unreported, 13 February 2014).